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January 29, 2010

Yoo Delights Fed Society With Tales of Stewart-Sparring

I ventured into a pocket of San Francisco conservatism last night to hear Berkeley Law Professor John Yoo address the local Federalist Society chapter. The event was held on the 17th floor of Sheppard Mullin’s offices in Embarcadero Center, far from where any no goodnik protesters could penetrate — what with all that pesky shouting of the “t” word (not that any demonstrators were on the Federalist mailing list, and knew to show up).

“Just a few seconds of the Socratic method, and he was mine,” Yoo said. The lawyers loved it.

Yoo’s main thesis is that the nation’s great presidents — Washington, Lincoln, FDR — took expansive views of executive power, while the weaker ones like Madison, Buchanan and Carter shrank and allowed other branches of government to dominate them.

This may be true as far as it goes, but I can’t help observing that Washington, Lincoln and FDR all had a powerful political mandate to act as they did, and were ultimately successful with their policies. Yoo didn’t discuss his former commander-in-chief, George W. Bush, at the Federalist hoedown. But I feel fairly safe in reporting that his early interrogation policies — which Yoo greenlighted — have not been proven to be effective in winning the war on terror. So much so that Bush himself moved away from the most extreme Cheney-ite positions during his second term.

The Federalist meeting wasn’t a place for such posits. The wine was flowing, and Yoo promised the delighted lawyers that if they sent him a copy of his book, he would sign and return it.

Comments

Clearly Dan Levine is not a viewer of the show. The host's name is Jon Stewart as in "The Daily Show with Jon Stewart. As for that other John, let me lift my impression of the interview from my blog "kafkaesq" (www.ethics-lawyer.com/kafkaesq:

"Could this have entered even an imagination as fertile as Kafka’s just a few years ago? Undoubtedly not. The remarkable thing to me was how utterly unthreatening Yoo was, the very picture of the recently hired junior associate defending his work product with a thoroughly legalistic analysis of why he was right. I picture him in his modest but comfortable Justice Department office late at night, working away on the torture memos, smiling to himself with the intellectual pleasure of working with interesting Constitutional issues, perhaps also with satisfaction of having risen to an important place so soon in his legal career. Beneath his feet, insulated from him by 8,000 miles of solid rock, and by his own intellectual abstraction, detainees, innocent and guilty alike, suffer the physical torment of stress positions, sleep deprivation, good old fashioned beatings, and something far worse, the mental torment of utter hopelessness. It is a juxtaposition that Franz Kafka would have appreciated."

John Yoo can enjoy the smug satisfaction of thinking he beat a television comedian, albeit a smart one, with his professorial "Socratic" method. The rest of us will have to live with the damage that he inflicted on the nation, not only damage to our reputation in the world, but damage to our collective morality, by his abdication of his professional responsibility to exercise independent judgment in writing the Torture Memos (see ABA Model Rule 2.1)

Yoo gave a very good speech and did an excellent job of explaining his position. Those who like to claim that he "lacks a moral compass" obviously haven't spent any time considering his arguments. I understand that it is easier to just demonize your opponents, but it is not very convincing. One can certainly disagree with Yoo, but petty insults just suggests one's comments are motivated by partisan politics not legal thought.

Lincoln hardly had a "powerful political mandate" - receiving less than 40% of the popular vote in the 1860 election, and not even on the ballot in the Southern states. The election was the most polarized Presidential election ever, and whatever your views are on the rightness or ultimate success of his policies, it's ludicrous to say that he had the mandate of Washington or FDR behind him.

Earle, you are correct about the 40 percent figure. I should have been more precise in saying that Lincoln had a clear mandate among those states that remained in the Union. He carried all but three of those states in 1860, and all but two in 1864.